UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of the Securities Exchange Act of
1934
Date
of
Report (Date of earliest event reported): March 27, 2008
Lumera
Corporation
(Exact
name of registrant as specified in its charter)
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Delaware
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000-50862
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91-2011728
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(State
of Incorporation)
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(Commission
File Number)
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(IRS
Employer Identification
Number)
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19910
North Creek Parkway, Bothell, Washington 98011
(Address
of principal executive offices)
(Zip
code)
Registrant's
telephone number, including area code: (425) 415-6900
Check
the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions
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o
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Written
communications pursuant to Rule 425 under the Securities
Act
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o
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Soliciting
material pursuant to Rule 14a-12 under the Exchange
Act
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o
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange
Act
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o
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange
Act
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ITEM
1.01. Entry into a Material Definitive Agreement.
On
March 27, 2008, Lumera Corporation (“Lumera”) and GigOptix, LLC (“GigOptix”)
announced that they have signed a definitive agreement to merge the two
companies. A copy of the press release is attached hereto as Exhibit 99.1.
Merger
Agreement
Lumera,
GigOptix, Galileo Merger Holdings, Inc. (“Holdings”), a direct wholly-owned
subsidiary of Lumera, Merger Sub L, Inc., a direct wholly-owned subsidiary
of
Holdings (“Merger Sub L”), and Merger Sub G, LLC, a direct wholly-owned
subsidiary of Holdings (“Merger Sub G”), entered into an Agreement and Plan of
Merger, dated as of March 27, 2008 (the “Merger Agreement”), pursuant to which
Merger Sub L would merge with and into Lumera (the “Lumera Merger”), with Lumera
surviving as a direct wholly-owned subsidiary of Holdings, and pursuant to
which
Merger Sub G would merge with and into GigOptix (the “GigOptix Merger” and,
together with the Lumera Merger, the “Mergers”), with GigOptix surviving as a
wholly-owned subsidiary of Holdings. On or prior to completion of the Mergers,
Holdings will be renamed GigOptix, Inc. and will be the continuing public
company successor to Lumera. The merger shall be treated as a tax free
reorganization.
Subject
to the terms and conditions of the Merger Agreement, which has been unanimously
approved by the boards of directors of Lumera and GigOptix, upon the completion
of the Lumera Merger, each share of Lumera common stock will be automatically
converted into and become the right to receive 0.25 shares of Holdings common
stock (the "Lumera Exchange Ratio") (subject to possible adjustment as provided
in the Merger Agreement), except that each share of Lumera Common Stock that
is
owned by Lumera, GigOptix or Holdings shall automatically be canceled, and
no
consideration will be delivered in exchange therefor. Lumera stock options
and
other equity awards will generally convert upon completion of the Lumera Merger
into stock options and equity awards with respect to Holdings common stock,
after giving effect to the Lumera Exchange Ratio. Upon the completion of the
GigOptix Merger, each share of GigOptix common stock will be automatically
converted into and become the right to receive right to receive (i) a number
of
shares of Holdings common stock equal to the quotient obtained by dividing
(x)
the aggregate number of shares of Holdings common stock issued to Lumera
stockholders in exchange for Lumera common stock by (y) the aggregate number
of
GigOptix membership units outstanding plus GigOptix membership units issuable
upon exercise of GigOptix options (the "GigOptix Exchange Ratio") and (ii)
Holdings common stock warrants to be issued in several tranches with exercise
prices determined by reference to the exercise prices of outstanding Lumera
stock options and Lumera common stock warrants, except that each GigOptix
membership unit that is owned by Lumera, GigOptix or Holdings will automatically
be canceled, and no consideration will be delivered in exchange therefor.
GigOptix stock options and other equity awards will generally convert upon
completion of the GigOptix Merger into stock options and equity awards with
respect to Holdings common stock, after giving effect to the GigOptix Exchange
Ratio.
Upon
closing, taking into account outstanding rights to acquire shares of Holdings
common stock in the future, existing holders of Lumera securities will own
approximately 50%, and existing holders of GigOptix securities will own
approximately 50%, of Holdings’ outstanding securities. Application will be made
for the Holdings common stock to be listed on the NASDAQ Global Market under
the
ticker “GIGX” upon completion of the Mergers.
The
Merger Agreement contains customary representations, warranties and covenants
of
Lumera and GigOptix, including, among others, covenants (i) to conduct their
respective businesses in the ordinary course during the interim period between
the execution of the Merger Agreement and consummation of the Mergers and (ii)
not to engage in certain kinds of transactions during such period. The board
of
directors of each company has adopted a resolution recommending adoption of
the
Merger Agreement and approval of the transactions contemplated thereby by its
respective stockholders, and each party has agreed to hold a stockholder meeting
to put these matters before their stockholders for their consideration. Each
party has also agreed not to (i) solicit proposals relating to alternative
business combination transactions or (ii) subject to certain exceptions in
the
case of Lumera, enter into discussions or an agreement concerning, or provide
confidential information in connection with, any proposals for alternative
business combination transactions.
Consummation
of the Mergers is subject to customary conditions, including (i) requisite
approvals of the Lumera stockholders and (ii) the absence of any law or order
prohibiting the closing. Consummation of the Mergers is also subject to (i)
the
effectiveness of the Form S-4 registering Holdings common stock issued to Lumera
stockholders in the Lumera Merger, (ii) the listing of Holdings common stock
on
the NASDAQ Global Market and (iii) Lumera's sale, disposition or winding up
of
Lumera's Plexera business division. Lumera's obligation to effect the Lumera
Merger is subject to certain conditions including: (i) GigOptix's
representations and warranties being true and correct as of the closing of
the
Lumera Merger, (ii) obtaining lock-up agreements related to the Holdings common
stock issued in the GigOptix Merger to Dr. Avi Katz and GigOptix's sole member,
(iii) the non-payment of certain GigOptix parent company indebtedness and (iv)
there not having been a material adverse effect on GigOptix. GigOptix's
obligation to effect the GigOptix Merger is subject to certain conditions
including: (i) Lumera's representations and warranties being true and correct
as
of the closing of the GigOptix Merger, (ii) Lumera having net working capital
of
at least $6 million as of the closing date, subject to reduction if the closing
date occurs after June 30, 2008, and (iii) there not having been a material
adverse effect on Lumera.
The
Merger Agreement contains certain termination rights for both Lumera and
GigOptix and further provides that, upon termination of the Merger Agreement
under specified circumstances, Lumera may be required to pay GigOptix a
termination fee of $1,000,000.
Under
the Merger Agreement, upon completion of the Mergers, Dr. Avi Katz, Chief
Executive Officer of GigOptix, will become Chairman of the Board and Chief
Executive Officer of Holdings, Michael Foreman, Chief Financial Officer of
GigOptix, will become Chief Financial Officer of Holdings, Andrea Betti-Berutto,
Chief Technology Officer of GigOptix, will become Chief Technology Officer
of
Holdings and Peter Biere, Chief Financial Officer of Lumera, will become General
Manager Lumera Division of Holdings. Holdings’ initial Board of Directors will
be comprised of seven members, including Dr. Avi Katz, Kimerly D.C. Trapp,
two
directors designated by GigOptix, two directors designated by Lumera and one
director to be designated by Holdings’ board of directors with the consent of at
least one member designated by Lumera.
The
foregoing description of the Merger Agreement is qualified in its entirety
by
reference to the Merger Agreement, which is filed as Exhibit 2.1 hereto and
is
incorporated herein by reference.
The
Merger Agreement has been included to provide investors with information
regarding its terms and contains representations and warranties of each of
Lumera and GigOptix. The assertions embodied in those representations and
warranties were made for purposes of the Merger Agreement and are subject to
qualifications and limitations agreed by the respective parties in connection
with negotiating the terms of the Merger Agreement. In addition, certain
representations and warranties were made as of a specific date, may be subject
to a contractual standard of materiality different from what might be viewed
as
material to stockholders, or may have been used for purposes of allocating
risk
between the respective parties rather than establishing matters as facts.
Investors should read the Merger Agreement together with the other information
concerning Lumera that Lumera publicly files in reports and statements with
the
Securities and Exchange Commission.
Forward-Looking
Statements
Information
set forth in this current report on Form 8-K contains forward-looking
statements, which involve a number of risks and uncertainties. Lumera cautions
readers that any forward-looking information is not a guarantee of future
performance and that actual results could differ materially from those contained
in the forward-looking information. Such forward-looking statements include,
but
are not limited to, statements about the benefits of the business combination
transaction involving Lumera and GigOptix, including future financial and
operating results, Holdings’ plans, objectives, expectations and intentions and
other statements that are not historical facts.
Important
factors that could cause actual results to differ materially from those
indicated by such forward-looking statements are set forth in Lumera’s filings
with the Securities and Exchange Commission. These include risks and
uncertainties relating to: the ability to obtain regulatory approvals of the
transaction on the proposed terms and schedule; the risk that the businesses
will not be integrated successfully; the risk that the cost savings and any
other synergies from the transaction may not be fully realized or may take
longer to realize than expected; disruption from the transaction making it
more
difficult to maintain relationships with customers, employees or suppliers;
competition and its effect on pricing, spending, third-party relationships
and
revenues; the need to develop new products and adapt to significant
technological change; implementation of strategies for improving internal
growth; realization of potential future savings from new productivity
initiatives; dependence on customers that operate in cyclical industries;
general worldwide economic conditions and related uncertainties; and the effect
of changes in governmental regulations. Lumera undertakes no obligation to
publicly update any forward-looking statement, whether as a result of new
information, future events or otherwise.
Additional
Information and Where to Find It
Holdings
intends to file with the Securities and Exchange Commission a registration
statement and other relevant documents in connection with the proposed Merger.
Investors and security holders of Lumera are urged to read the proxy statement
that will be contained in the registration statement filed by Holdings and
the
other relevant documents when they become available because they will contain
important information about Holdings, GigOptix and Lumera and the proposed
merger transaction. Investors and security holders of Lumera may obtain free
copies of the proxy statement and the other relevant documents filed with the
Securities and Exchange Commission (when they become available) at the
Securities and Exchange Commission’s website at http://www.sec.gov and may also
obtain free copies of the proxy statement (when it becomes available) by writing
to Lumera Corporation, 19910 North Creek Parkway, Bothell, WA 98011-3008,
Attention: Investor Relations or by telephoning us at (425) 415-6847.
Information regarding the identity of persons who may, under the Securities
and
Exchange Commission’s rules, be deemed to be participants in the solicitation of
stockholders of Lumera in connection with the proposed transactions, and their
interests in the solicitation, will be set forth in the proxy statement that
will be filed by Lumera with the Securities and Exchange Commission and
contained in the registration statement that will be filed by Holdings with
the
Securities and Exchange Commission.
The
press release attached as Exhibit 99.1 hereto shall not constitute an offer
to
sell or the solicitation of an offer to sell or the solicitation of an offer
to
buy any securities, nor shall there be any sale of securities in any
jurisdiction in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such
jurisdiction. No offer of securities shall be made except by means of a
prospectus meeting the requirements of Section 10 of the Securities Act of
1933,
as amended.
ITEM
8.01.
Other
Events.
In
conjunction with the merger of Lumera with GigOptix, Lumera will cease investing
in Plexera Bioscience LLC (“Plexera”), Lumera's life science tools subsidiary.
Day to day operations in Plexera have been discontinued and the employees
associated with Plexera have been terminated. A number of Plexera employees
have
been paid severance in connection with their termination. Lumera is seeking
to
sell the Plexera assets, but has no definitive sale agreements relating to
the
Plexera assets in place at this time.
ITEM
9.01.
Financial
Statements and Exhibits.
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2.1
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Agreement
and Plan of Merger by and among Lumera Corporation, GigOptix LLC,
Galileo Merger Holdings, Inc., Galileo Merger
Sub
L, Inc. and Galileo Merger Sub G, LLC dated as of March 27,
2008
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99.1
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Press
Release issued by Lumera on March 27,
2008
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Signatures
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant
has
duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
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LUMERA
CORPORATION
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By:
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/s/ Peter
J.
Biere
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Name:
Peter J. Biere
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Title:
Chief Financial Officer and Treasurer
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Date:
March 31, 2008
EXHIBIT
INDEX
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Exhib
it
Number
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Description
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2.1
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Agreement
and Plan of Merger by and among Lumera Corporation, GigOptix LLC,
Galileo Merger Holdings, Inc., Galileo Merger
Sub
L, Inc. and Galileo Merger Sub G, LLC dated as of March 27,
2008
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99.1
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Press
Release issued by Lumera on March 27,
2008
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